Should cross code conduct be considered in mitigation in rugby disciplinary cases? The Sonny Bill Williams decision

As the dust has now settled on the British & Irish Lions’ Tour of New Zealand – the trophy split, the combined team picture taken, the long flight home done – it seems as good a time as any to reflect on a point that was widely regarded as hugely significant in the series: the sending of All Black Centre Sonny Bill Williams in the second test. Much ink has already been spilt considering the ramifications of this on the pitch, both during the match and in the next, less on considering the judicial process around it.

The Judicial Committee met on the evening of the 2 July and concluded[1] that Williams should be suspended for 4 weeks (the reasons for the decision were not published until the 26 July). However, it is open for discussion as to whether that could, or indeed should, have been longer.

The Offence

All parties accepted that a red card, issued in the 24th minute of the match for a shoulder charge into the face of Lions’ wing Anthony Watson, was correctly shown to Williams and that it was the result of his breaching Law 10.4(g), which states that:

“A player must not charge or knock down an opponent carrying the ball without trying to grasp that player.”[2]

Considerations for the Committee

In the light of this acceptance, there were two areas that exercised the Committee:

Whether the offence committed by Williams was mid or low-end; and

What sanction should be imposed in the light of the breach.

It should be noted at this point that there was extensive debate over which matches the suspension should apply to. The Committee’s ruling on that was subject to a successful appeal by Williams, the merits of which fall outside the ambit of this article which focuses solely on the length of the suspension, rather than which matches it applied to.

Where the Offence Fell

It was submitted by Williams that his offence fell towards the lower end of the spectrum covered by Law 10.4(g).

When assessing an offence, a Judicial Committee is required to consider World Rugby Regulation 17.19.2,[3] which lists factors relevant to the seriousness. In Williams’ case, the Committee found that a number of these considerations were relevant, some to the Williams’ benefit – such as the finding that his actions were reckless, but not intentional (17.19.2(b)) – and others less so: the gravity of the offence was high as it could have caused severe injury (17.19.2(c)).

Having considered all the factors, the Committee disagreed with Williams’ submission that his actions placed him in the lower end of the offence and placed him in the middle of the range, instead.

The Sanction Imposed

As the Judicial Committee noted (at Paragraph 20) the starting point for a mid-level offence under Law 10.4(g) is a six-week suspension. As was widely reported at the time of the decision, Williams’ suspension was for less than this: he received four weeks.

When considering the length of the suspension the Committee assessed various mitigating factors. These included: William’s contrition and early admission of guilt; his respectful and appropriate conduct and his good character away from the field of play.

The Committee also considered Williams’ previous disciplinary record, noting a yellow card in 2008 for a shoulder charge and a citing commissioner’s warning for the same offence in 2015. They then concluded that his record was “otherwise unblemished”. When considering this record, the Committee noted that “the Player is 31 years of age and is in his thirteenth year of having played both professional rugby union and rugby league” (Paragraph 24.2).

However, when considering aggravating factors, the Panel stated that: “The Player candidly disclosed that he had previously been suspended for foul play whilst he was playing professional rugby league in Australia in the National Rugby League Competition” (Paragraph 21). It appears that these suspensions were as follows:

2007: a two-game suspension for a careless high tackle;

2013: a two-game suspension for a careless high tackle; and

2014: a three-game suspension for another careless high tackle.

The Committee also noted, somewhat confusingly, that: “the Player said that the suspensions in 2013 and 2014 were for shoulder charges”.

However, the panel concluded that these earlier indiscretions, committed in a different country and in a different code, albeit for seemingly similar offences, should be disregarded as an aggravating factor in the light of the lack of evidence concerning the offences before them.

Debate

Two points of contention arise from that decision:

firstly, should the panel have taken the time to seek out such evidence to allow for a fuller assessment of the previous offences? and,

secondly, if offences committed under another code are dismissed as an aggravating factor, can a thirteen year “reasonably unblemished record” (Paragraph 23) be justifiably held up as a mitigating factor when that period encompasses both Rugby Union and League.

Assessing the Australian Offences

The first point is a purely practical consideration: would it really have taken the Committee so long to have obtained the necessary evidence, be it video footage of the previous conduct or the Australian disciplinary forums’ findings on it, that a delay would have been unconscionable? It hardly seems likely, particularly when archived footage is so readily accessible and easy to share using technology.

That such a delay would not have been a problem becomes even clearer when bearing in mind the date on which the Committee produced its reasons: 26 July, some three and a half weeks after the hearing. In that time, the reasons make plain that numerous emails had been exchanged between the Committee and Williams’ lawyers (see, for example, Paragraph 31). Should anything have come to light regarding the previous citings, there were plainly channels of communication open over which points could have been discussed. Indeed, in the time between the hearing and a decision, any evidence could have been obtained, reviewed and, if necessary, a short further hearing been called for submissions, all without delaying the making of the final determination.

It must be conceded that the press wanted to know immediately how long the suspension was going to be. This is unsurprising given the media circus that surrounded the Lions’ tour and Williams’ stature within the game. However, it was clear that following his red card and his decision not to contest it, Williams was always going to be suspended for at least the next few games on his schedule. It would have been no issue, therefore, for the determination of the total length of his suspension to have been postponed for a few weeks to enable further enquiries to take place.

Mitigating but not aggravating?

The second point relates more to the internal consistency of the Committee’s decision: can it be right to discount points when looking at the aggravating and mitigating factors? If Williams’ Australian misdemeanours were not relevant, either because the conduct was entirely different or happened many years ago, then excluding them seems logical. But this was not the case for Williams’ conduct: he had committed offences in 2007, 2008, 2013, 2014 and 2015 and possibly as many as three of these offences were for shoulder charging (2013, 2014 and 2015) – i.e. the same offence he had just committed in 2017. Such a pattern of offending is surely relevant when considering the aggravating and mitigating factors of a player’s conduct.

However, the Committee did not consider it relevant as conduct which might aggravate the offence, it went one step further and concluded that Williams’ thirteen years of playing all rugby revealed a relatively unblemished disciplinary record, a factor that was considered to have a mitigating effect on his suspension length.

It must surely be questionable to disregard offences partly on the basis that they had been committed whilst Williams’ was playing “another sport” (Paragraph 23). However, to conclude shortly after that the time spent playing in that sport should count towards the total of thirteen years overall playing time and that in total, in that time, the player has committed only two offences and, therefore, has an “otherwise unblemished” (Paragraph 24.2) playing record seems contradictory, if not perverse.

It would arguably have been more consistent of the Committee to rule that Williams’ record is not clean and not treat it as a mitigating factor, but, in the absence of straightforward evidence regarding the other offences, conclude that they could not fairly consider them to aggravate the current offence either. The two would have, in effect, cancelled each other out.

As it transpired, the Committee concluded that Williams’ should have the benefit of something that on reflection, he may not have been entitled to. Indeed, if the Committee had ruled that Williams’ previous citings were relevant they may have even considered that his continuous committals of shoulder charging offences showed at best, a disregard for others safety and, as such, should constitute a clear aggravating factor and caused an uplift in the suspension period.

Conclusion

It must be recognised that the Committee’s assessment of the severity of the offence committed by Sonny Bill Williams in the 24th minute of the second test match was entirely correct and clearly fell in the middle of that conduct covered by Law 10.4(g). A starting point of 6 weeks was inevitable from that.

However, it was when assessing if there should be any departure up or down from that starting point that the Committee fell into error. Williams’ previous offences should have been considered to at least mean he was not entitled to the benefits of relatively unblemished disciplinary record and should, possibly, have been considered as an aggravating factor, given the similarity of the conduct.

Equally, time could have been given to obtain evidence that would have allowed for consideration of the previous conduct. Although pure speculation, if this had revealed marked similarities to the foul Williams committed on Anthony Watson, then the likelihood of any suspension being reduced diminishes and the possibility of it being uplifted grows.

If the previous conduct had been reviewed and not counted purely as a mitigating factor, it could have resulted in Williams’ suspension not getting the reduction it did from the starting point and possibly, being uplifted instead, although it must be acknowledged that the All Black had other mitigating factors on his side. Either way, a reduction to four weeks was, in this author’s opinion, a fortunate result for Williams.

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Author

Graham is a barrister at 3PB. Having gained a wealth of knowledge in other areas, Graham has most recently begun accepting instructions in sports law matters and has a keen interest in regulatory and disciplinary aspects of the area, both domestically and internationally. He regularly prosecutes in prohibited substance matters for the British Horseracing Authority, as well as assisting with other disciplinary matters on the Authority's behalf.

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